Summary: Mr X complained the Council has failed to properly investigate or take appropriate enforcement action in relation to an unlawful mobile home on land next to a property he is purchasing. There is no evidence of fault in the way the Council considered Mr X’s concerns about a breach of planning control.

The complaint

1. The complainant, whom I shall refer to as Mr X complained the Council has failed to properly investigate or take appropriate enforcement action in relation to an unlawful mobile home on land next to a property he is purchasing. Mr X complained he has been given conflicting and inconsistent information about action the Council will take and that officers have failed or significantly delayed in responding to his correspondence and calls.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

• As part of the investigation, I have:
• considered the complaint and the documents provided by Mr X;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with Mr X;
• Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Planning enforcement

4. Councils can take enforcement action if they find planning rules have been breached. However, councils should not take enforcement action just because there has been a breach of planning control.
5. Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. When deciding whether to enforce, councils should consider the likely impact of harm to the public and whether they might grant approval if they were to receive an application for the development or use. Government guidance encourages councils to resolve issues through negotiation and dialogue with developers.
6. Government guidance says: “Effective enforcement is important as a means of maintaining public confidence in the planning system. Enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control.” (National Planning Policy Framework July 2021, paragraph 59)
7. Planning enforcement action is also subject to statutory time limits. A council may not take planning enforcement action in the following circumstances:
• there was development on, over or under land without permission, no enforcement action may be taken after 4 years from the date of the breach;
• there was a change of use of a building to a use as a single dwelling house, no enforcement action may be taken after 4 years from the date of the breach; or
• for any other breach, no enforcement action may be taken after 10 years from the date of the breach.

What happened here

8. In September 2021 Mr X had almost completed his purchase of a property when he identified a static caravan had been sited on the adjacent land. He delayed completion of the purchase and contacted the Council as he was concerned someone was living in the caravan.
9. A council officer, Officer 1 visited the site and took photographs. They then wrote to the landowners, Mr Y and Mrs Z in early November 2021 advising the caravan required planning permission. Officer 1 advised Mr Y and Mrs Z the caravan should be removed, or they could apply for retrospective planning permission.
10. In December 2021 the Council the served Mr Y and Mrs Z Planning Contravention Notices (PCN) requiring them to provide information regarding the how long the caravan had been sited on the land, whether the caravan had changed or been replaced, how it had been used and whether anyone lived in it.
11. Mr Y responded in January 2022 and confirmed there had been a caravan on the site for over 30 years and it had been replaced. He confirmed the caravan was not being lived in. Mrs Z also responded and confirmed the current caravan had been at the site since September 2021. The previous caravan was very old and had been used for storage. This had been removed two or three months before the new caravan arrived at the site. Mrs Z believed Mr Y may have lived in the new caravan for time but was not doing so now. It was unclear whether anyone was now living in the caravan.
12. A second planning officer, Officer 2 visited the site and photographed the caravan in February 2022. They also reviewed the planning history for the site, which showed the Council had granted planning permission many years ago for a mobile home at the site for agricultural purposes. This permission required the caravan to be removed within 18 months. The caravan was not removed by the specified date and remained on the site until it was replaced by the new caravan.
13. Officer 2 wrote to Mr X in February 2022 to advise that as a caravan had remained on the site in breach of the planning condition for more than 10 years it had become lawful. They confirmed the Council would not be able to have the caravan removed due to this established lawfulness. Officer 2 confirmed they had however written to Mr Y advising him that any attempt to live in the caravan would be a change of use and could result in enforcement action.
14. Mr X asked the Council to confirm whether the caravan had to be emptied of all furniture so that it could not be used as residential accommodation. He also asked the Council to confirm what action it could take if Mr Y decided to live in the caravan and whether he would be allowed to live there in the interim.
15. As Mr X did not receive a response, he spoke to a senior officer, Officer 3 in March 2022. The notes of this conversation state Mr X wanted assurances that the matter would be resolved, which the officer could not give. Officer 3 explained that from a planning perspective the Council could not provide any guarantees and any decision about buying the adjacent property was a matter for Mr and Mrs X. The Council had focussed on the caravan being in situ and on its use, not what it looked like or contained.
16. Officer 3 explained that as long as no one lived in the caravan, there was no breach of planning control. The Council could not ask the owner to remove the insides of the caravan as this was not reasonable or necessary. Mr X disagreed and believed Mr Y intended to move into the caravan. Officer 3 confirmed if this happened the Council would consider the harm of this and the expediency and public interest in taking action. They also confirmed the process would take some time to conclude.
17. As Mr X was not satisfied he then discussed his concerns with the Council’s Chief Executive. The Chief Executive then wrote to Mr X with a summary of the Council’s action in this matter. This acknowledged Officer 1 may have said the caravan would have to be gutted so that it could not be lived in. However both Officers 2 and 3 consider it would be unreasonable to require someone to gut the inside of a caravan to prevent a breach that had not happened. The caravan could be moved off site and potentially used elsewhere. There was no current breach and the Council had advised Mr Y he could not live in the caravan.
18. If in the future the Council received a complaint the caravan was occupied it would investigate. It could not however provide any guarantee on the potential outcome.
19. The Council then closed its enforcement case on the basis there was no breach of planning control.
20. Mr X made a formal complaint about the way the Council had dealt with this matter. He complained it was almost impossible to speak to officers and that they did not return his calls in a timely manner or respond to his emails.
21. Mr X questioned how the new fully fitted caravan could be considered a like for like replacement for the derelict cabin previously sited on the land and used for storage. He also said he had been told that if the caravan did not affect anyone there would be no point in enforcement action, and that at least two people had to complain before anything could be done. He asserted this was unfair and asked the Council to confirm whether this was correct.
22. The Council response apologised for any distress caused by the lack of contact. It noted officers had communicated extensively with him but accepted Mr X did not feel his expectations had been met. It explained the planning enforcement team had experienced a huge increase in workload over the last 12 months and cases had been prioritised in terms of harm and public interest. It apologised for the delay in Officer 2 contacting Mr X when they took over the case but was satisfied this had not affected the overall position taken by the Council.
23. The Council reiterated that there was planning permission for a caravan to be in situ on the land, but there was no permission for residential use. What the caravan had inside it in terms of fixtures and fittings was irrelevant, the main concern was what it was used for. The caravan had been used for storage for decades so a change to residential use would require planning permission. But there was currently no breach of planning control.
24. In addition the Council confirmed it considered each alleged breach of planning control on a case by case basis, in line with the Council’s Local Enforcement Plan. The Council could only take further action if there was a breach of planning control. That was not the case here. It noted that Mr X was able to purchase the property regardless of the Council’s actions. It was for Mr X to assess the risk and decide whether to proceed or not.
25. Mr X remains dissatisfied and has asked the Ombudsman to investigate his complaint. He feels he has been let down by the Council’s planning department. Mr X had been living in a caravan pending the completion of the purchase of the property as he had sold his home. Mr X is certain it is Mr Y’s intention to move into the caravan and he wants this issue resolved before he buys the property. Ideally he would like the Council to require Mr Y to remove the caravan, but failing that he asserts the caravan should be stripped of all fixtures and fittings so that it cannot be lived in.
26. In response to my enquiries the Council disputes giving conflicting and inconsistent advice. It states the enforcement position altered once it had gathered and considered information and evidence. The Council also disputes its actions have affected Mr X’s purchase of the property or his current living arrangements. It states he was free to go ahead with the purchase of the property at any time and was seeking assurances the Council could not give.
27. The Council has reiterated there is currently no breach of planning control and that Mr Y has been told he cannot move into the caravan. The Council cannot remove the caravan but would take action if the use of the caravan changed to residential in the future.
28. Mr X has responded to the draft decision and maintains Officer 1 was acting in Officer 2’s instructions when they said they would visit the site and tell Mr Y to remove all the fixtures and fittings from the caravan. He asserts the Council was wrong to change its position and should require Mr Y to strip the caravan irrespective of the cost to Mr Y of doing so. Planning permission was granted for an agricultural building and Mr X disputes the caravan currently sited there, which is significantly bigger than the original, can be described as an agricultural building.

Analysis

29. It is not the Ombudsman’s role to decide whether there is a breach of planning control, or whether Council can or should take enforcement action; that is the Council’s job. We can only consider whether the Council assessed the situation correctly. We cannot criticise a council where officers have followed the correct procedures and reached a reasoned decision.
30. The Council has visited the site, reviewed the site history and planning permissions, and considered the responses to the PCNs. Based on this evidence the Council has concluded there is currently no breach of planning control and it cannot take enforcement action. This is a decision the Council is entitled to take.
31. Mr X disagrees and would like the Council to take pre-emptive action to ensure Mr Y is not able to live in the caravan in the future. The Council has told Mr X he cannot live in the caravan but does not consider it reasonable or necessary to require him to gut the inside of a caravan to prevent a breach that had not happened. It has also confirmed it will take action if Mr Y moves in to the caravan. This is an appropriate response.
32. I recognise Mr’s reluctance to proceed with the purchase of a new property given his concerns about Mr Y’s intentions, and his desire for certainty. But we would not expect the Council to take enforcement action where there is no breach of planning control.
33. Mr X is also unhappy with the time taken to deal with this matter and to respond to his calls and correspondence. The Council’s records show Mr X has spoken to Officers 1, 2 and 3, and the Chief Executive at different stages of the investigation. Officer 3 apologised to Mr X in December 2021 for the delays in correspondence and the Council has apologised for the delay when Officer 2 took over the investigation. I consider this to be an appropriate response.
34. The Council states its aim is to bring cases to a conclusion within six months where appropriate. In this instance it took seven months. It is unfortunate that a change in case officer was necessary part way through the investigation as this will inevitably have affected the timeliness of the investigation. There is however no evidence of any significant delay which has caused Mr X an injustice.

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Final decision

35. There is no evidence of fault in the way the Council has investigated Mr X’s concerns about a breach of planning control.

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Investigator's decision on behalf of the Ombudsman